Celebrity stalkers and the law

(FindLaw) -- On December 14, Ambrose Kappos -- the alleged stalker of singer Sheryl Crow -- was acquitted by a New York State jury.

Kappos was charged with having stalked Crow when, in 2003, he confronted her backstage at a New York performance venue, the Hammerstein Ballroom, where she was about to sing at a benefit. She was spirited into her limousine, but Kappos then ran up to it and cried, "I am Ambrose!" (He had also paid a visit to Crow's father, and made calls to younger sister, in 2002, asking to meet Crow.)

Kappos claims he was "courting" Crow and meant her no harm. But she testified she found his visit "eerie" and it made her "alarmed" and "nervous." There is evidence Kappos may be somewhat unbalanced: He claims to have been in telepathic communication with Crow, because he is her "spiritual twin," and apparently told her father and sister he bore messages from God

Yet, it's not surprising jurors were unconvinced by New York's ill-considered burglary charge against Kappos, which was a stretch, at best: even if Kappos's actions technically fit the legal definition of burglary in New York, his behavior simply was not what we normally think of as burglary. More to the point, jurors also were unconvinced with respect to the charge that did fit the facts: They were unpersuaded by prosecutors' case that Kappos was a stalker.

Perhaps the relative mildness of Kappos's conduct - which his attorney stressed was nonviolent -- played a role. The long history of well-meaning fans sneaking backstage, for various innocuous reasons, may also have hurt prosecutors' case.

What should Crow do now?

Fortunately for the singer, the law of stalking is not only criminal; it is also civil. Thus, Crow can -- despite losing her criminal case -- follow the precedent set by Jackie O, and sue Kappos in civil court. If she does, she will face a far less demanding standard of proof than "beyond a reasonable doubt." She will only have to prove her case by a "preponderance of the evidence" - meaning, roughly, she must prove it is more likely than not that her account of the facts is correct.

It seems likely that, in civil court, Crow will be able to get an injunction against Kappos. And if Kappos were to violate the civil injunction, he could be held in contempt of court and ultimately sent to jail - demonstrating that sometimes a civil law case can end up with a criminal law result.

In this column, I will discuss the more general issues that celebrity stalking cases like this one raise, where persons like Kappos -- who are not journalists - get too close to celebrities.

(The problem of paparazzi who get too close to celebrities - or intrude too far into their lives - is a separate issue, because of the First-Amendment-versus-privacy-rights clash that occurs there. Such cases can genuinely blur the private/public distinction when it comes to constitutionally-protected activities. I discuss this distinction in an earlier column concerning a suit by Naomi Campbell.)

As I will explain, in the case of nonjournalist stalkers like Kappos, the most pertinent question is how privacy rights are to be enforced - through civil law, criminal law, or both. I will also focus on the particular legal tactics still available to Sheryl Crow, and others in her situation.

The law applicable to most celebrity cases

Because most celebrities live or work in New York or California, looking at the law of those two jurisdictions provides a good introduction to the kind of law that will be likely to apply in a celebrity civil invasion of privacy case.

The California Constitution expressly recognizes a right of privacy. And California recognizes the tort of intrusion on seclusion - which is sometimes simply called "invasion of privacy." (Technically, it is only one of four torts that are referred to as the "privacy torts." But it is the one that is closest to what we typically think of as an invasion of privacy.)

In defining the tort, California follows The Restatement (Second) of Torts § 652B. As that section explains, an invasion of privacy claim doesn't cover all intrusions on one's solitude, but it does cover very offensive ones:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person.

One has to think that surprising Crow backstage, alone, just before she was about to perform -- after having engaged in a campaign of calling and dropping in on her relatives -- might be seen by some as "highly offensive." If Kappos's actions had taken place in California, Crow might have been able to get an injunction against him there.

Unfortunately for Crow, however, New York does not recognize a civil claim for "intrusion upon seclusion." . There are, however, other civil causes of action a celebrity may also use to succeed in getting an injunction against a would-be stalker in New York.

Many of the cases on the books involve paparazzi - who, as noted above, enjoy First Amendment rights. It is all the more striking, then, that courts have cracked down even on paparazzi behavior -- when it puts celebrities at risk or is otherwise offensive. These precedents are also very good ones in favor of placing restraints on nonjournalists' stalking; for although cases involving paparazzi are harder ones, the stalked victim still won in some instances.

Consider the landmark 1973 New York case of Galella v. Onassis. There, well-known paparazzo Ron Galella, according to the court, "took pictures of John Kennedy riding his bicycle in Central Park across the way from his home. He jumped out into the boy's path, causing the agents concern for John's safety.... invaded the children's private schools... came uncomfortably close in a power boat to Mrs. Onassis swimming [and].... followed a practice of bribing apartment house, restaurant and nightclub doormen as well as romancing a family servant to keep him advised of the movements of the family."

When the paparazzo, Galella, sued FBI agents who had intervened, Jackie Kennedy Onassis countersued Galella. She won an injunction against any similar conduct by Galella - and the injunction was upheld by the U.S. Court of Appeals for the Second Circuit.

Among Onassis's claims were harassment, and intentional infliction of emotional distress. Celebrities in Crow's position who are suing in New York - or in California, for that matter -- may want to avail themselves of such claims, too. Again, when the stalker has no First Amendment rights to assert, the celebrity's case may be even stronger.

Finally, when a stalker is unstable, a claim for negligent infliction of emotional distress may more accurately reflect the person's state of mind: After all, an unstable person may not be trying to alarm the celebrity, but may end up carelessly doing so anyway.

Do I have your blessing?

What other tactics might Crow use to make sure Kappos does not trouble her again? Another might be to see if her family members can help by filing their own suits. .

A particularly ugly tactic celebrity stalkers use is to drop by the house of the celebrity's parents. As I mentioned earlier, Kappos had called Crowe's sister, and visited her father at his Missouri home where, according to Crowe's father, Kappos told him he "was the soul mate for my daughter, Sheryl, and wanted to make contact with her." - .

Actress Gwyneth Paltrow was a victim of the same tactic: Her stalker, Dane Soiu, twice showed up at her parents' Santa Barbara home. Finally, actress Blythe Danner, Paltrow's mother, personally confronted Soiu and told him to leave them alone.

This tactic is especially ugly, in my view, because celebrities' parents - some of whom are elderly - probably do not have security as tight as the celebrity does. To terrorize celebrities' parents because they are more vulnerable, is a low blow.

Fortunately, this tactic may also confer a legal advantage on the celebrity. Stalkers may more easily get away with approaching celebrities in public or quasi-public places - such as the Hammerstein Ballroom, where Kappos confronted Crow. But if they go to parents' homes - as Kappos did on his visit to Crow's father, Wendell -- they are trespassing, which is a criminal offense.

And if stalkers even lurk near parents' homes, and the parents are non-celebrities, they may find it easier to bring invasion of privacy claims than the celebrity herself would. That's because judges and juries can be unsympathetic to celebrity privacy claims. They know celebrities have bodyguards to protect them, and may see stalking by fans as merely the price of fame and fortune. Typically, this attitude is entirely unfair: Celebrities obviously shouldn't be asked to pay for fame in blood, or fear.

Still, some may view a celebrity who claims to be a stalking victim as less than sympathetic. " Fan" status can seem to normalize aggressive behavior - from shouted slur and insults, to the demand that the celebrity sign his or her name on a piece of paper (or of skin) or suffer verbal abuse for failing to comply.

In contrast, virtually everyone is sympathetic to elderly parents who are simply ordinary people, going about their business, who are suddenly terrorized by a stranger who seems to be a threat to their son or daughter. Their testimony may carry more weight, and their cases may have a greater likelihood of success.

So stalkers who believe parents are an easy route to their children should beware: That may be true logistically, but it's not true legally. And if Kappos persists in contacting her father and sister, as he did in the past, Crow may want to advise them to bring their own cases against him.

Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden's first novel, 3, was published recently. Hilden's Web site, www.juliehilden.com, includes MP3 and text downloads of the novel's first chapter.